Okay, so by now everyone knows, right? Donald Trump has recently said he wants to change the Fourteenth Amendment so as to eliminate birthright citizenship, and he wants to do it without another amendment. The problem according to the idiot in the White House is that some scholars (he assures us) say the prevailing interpretation of the Fourteenth Amendment is just wrong. Changing it, according to this view, is not a case of rewriting the rules so much as it is a case of just changing the way we interpret them. Therefore, the Cheeto and its enablers think he can do this with just an executive order. Nevermind that Obama’s use of executive orders was proof positive that he himself was a demon from a special Muslim Hell sent to personally devour the Constitution right along with all the babies and pizzas ever served in Tea Party Hell, Donald Trump is thinking he’s just gonna do it.

And the deplorables sing, doot, doot doot, da doot, doot doot doot…

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Some folks tell me that this is a distraction from bomb scares and right wing shooters, or maybe some other legal decision that Donald is going to quietly sign into being while we stand aghast at the orange Hell that has become of our sweet country, but then again, maybe some of those are distractions from this, or maybe someone is distracting us from a election. I dunno. I give up on trying to sort out what’s supposed to be a distraction from what. The problem with all the distraction talk is it assumes that Donald and the deplorables are focused enough to have clear priorities in the first place. That notion is about as plausible as a degree from Trump University.

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But all of this does raise an interesting question; what is the case for saying the 14th Amendment doesn’t actually make the children of foreign nationals into U.S. citizens if they born on U.S. soil?

Let’s start with the text itself. Section 1 of the Fourteenth Amendment reads as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The first line contains the case for birthright citizenship, and that case is commonly accepted by most people with any professional responsibility to handle such matters or argue them in a courtroom.

So, why would anyone think they are wrong?

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The quick and dirty version of this argument is to simply say that this doesn’t apply to foreigners, because they are loyal to another country and another set of laws, so they aren’t subject to the jurisdiction of the U.S.

The quick and dirty version of this argument is also very stupid, but yes, I have met people who make precisely that argument, as stated above, and without adding anything else to the argument.

Anyway, the quick and dirty response to the quick and dirty version of this argument is to point out that foreign nationals, undocumented immigrants, modern secessionists, and full-on fugitives from the law are all subject to U.S. law whether they like it or not. If that’s just a matter of opinion, it’s an opinion likely shared by those with the power to make it so.

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The quick and dirtier argument is that the 14th Amendment was written to protect the freedman from Jim Crow laws passed in the wake of the civil war. — You know what, let’s all just take a moment here to appreciate the fact that those now reminding us of this fact as a means of denying citizenship to Latinos contain a lot of the same neo-Confederates whose sympathies clearly aren’t with those recently freed slaves anyway, …or their descendants. The 14th Amendment has always been a great big thorn in the side of the bigots who want to resurrect the old South. There is a clear pattern here, and it sure as Hell isn’t defined by careful attention to historical facts and details of Constitutional law. — Anyway, the point in this quick and dirtier version of the argument against birthright citizenship is that the law was always mean to protect a specific class of people, newly freed slaves, and that our nation’s present habit of applying it to just about anyone born in our country extends the application of that law beyond its original purpose.

And here, history gobbles up law. Context eats text, and the whole nation let’s out a big fat bigoted burp in celebration.

…if Donnie and the deplorables get their way anyway.

The problem here is that the context doesn’t in itself elucidate the text, it just gobbles it up. (Yep, I’m sticking with that imagery.) If you go back up and read the text above, it simply doesn’t say; “Hey southerners, black people are citizens, so stop treating them like shit!” No, it doesn’t. Instead, it presents us with a perfectly general principle, and that principle is not limited in scope to the specific historical context in which it was written. Those who wrote it could well have defined its scope more narrowly if they wanted to. They didn’t.

Far from helping us to understand the meaning of the text, this pseudo-historicism invites us to ignore the text on account of an historical factoid.

So, the quick and dirtier argument is also stupid, but I really must insist, I have met people who have made precisely this argument, without adding anything else to it. It’s unimpressive. It really isn’t all that clear that Donald Trump or the vast majority of his supporters have anything more going for them than this simple sleight-of-hand gimmick, not withstanding that we can all see them palming the cards even as they congratulate themselves on a winning hand.

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But is there more to it?

Yeah, well, kinda. If you aren’t too particular, there is an argument to be made that goes a little beyond this kind of idiocy. It takes us back to the clause “and subject to the jurisdiction thereof.” Some folks would have us believe that there is specific reason to think this clause was not intended by those who wrote it, debated it, and voted on it to apply to foreign nationals. If that’s the case, they maintain, the children of those nationals would not be made citizens by simple birth here in the U.S.

What is that reason?

Well it isn’t a question of legal versus illegal immigration, because America wasn’t really trying to control immigration at that point in our history. So, don’t let any deplorables take you down that dumb-ass dead-end either.

No, the argument rests on the possibility that the framers, so to speak, of the Fourteenth Amendment specifically said that its protections did not apply to non-nationals. If we can find people involved in writing the law who said it shouldn’t apply to foreign nationals, so the argument goes, then we should assume that the phrase invoking jurisdiction was always meant to exclude them. The Supreme Court has already ruled that children of legal immigrants are entitled to birthright citizenship under the 14th Amendment, and no doubt the anti-birthers consider that a mistake, but more importantly, they will insist the court has never applied this standard to the children of illegal immigrants.

…which once again, is a distinction that wasn’t made when the 14th Amendment was drafted and ratified.

That really should be QED right there, but these are strange days indeed, so I guess we’ll have to go a couple extra rounds on the topic.

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One of the most idiotic versions of this argument comes from a misquoting of the principle author of the 14th Amendment Senator Jacob Howard who stated:

…[E]very person born within the limits of the United State, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of person

Those using this passage to argue against birthright citizenship typically make one minor alteration the text. They add an ‘or’ before the clause saying “who belong to the families of ambassadors…” This transforms the original text, taking what is in effect an elaboration on a single concept and makes it something of a list. The ambassadors become one more class of people in addition to aliens, whereas the original text is simply spelling out the same concept with a variety of different phrases. Michael Anton, a former aid in the Trump administration pulled this stunt. He still insists that the ‘or’ just spells out the actual intent better for the audience. He is lying of course.

Yes, lying.

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The argument isn’t always made on such disingenuous grounds. Not surprisingly, the Congressional debates over the 14th Amendment contain an extensive discussion of the range of people covered under the provision. There were many questions about how this might or might not apply to Indians, and in particular to Indians who retained connections to their own tribal communities. There were questions about how it might apply to Chinese immigrants and gypsies, etc.

Far from a clear concept, citizenship itself emerges as a tangled mess of a idea in these discussions. One gets a general sense that while many of the participants assumed that anyone in the United States was entitled to the legal protections in the Bill of Rights (which puts them at odds with much of the right wing today), they also recognized that the right to vote among other things was in fact limited to people who were not loyal to a foreign nation. They also distinguished the basic rights that might go with simply living in America from the right to hold property and/or the obligation to serve in the military if drafted, and all of this was discussed under the banner of ‘citizenship’. One gets the impression that those debating the 14th Amendment weren’t all that certain as to just what citizenship entailed. A few had definite opinions to be sure, but as a group, they are not all on the same page.

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The whole issue is further complicated by the precedent set by the Civil Rights Act of 1866 which contains explicit language excluding those loyal to a different nation, and an assumption by some participants that the 14th Amendment really does the same thing. In effect, people looking at two different documents containing very different language seemed to treat them as though they meant the same thing.

…which is a problem.

Here is the relevant text from the Civil Rights Act with the relevant section in bold:

To protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

You can see that this doesn’t match the text of the 14th Amendment. Simply put; those who now assume that the 14th Amendment was always intended to exclude children of foreign nationals born in the United States would be right if they were talking about the Civil Rights Act. When talking about the 14th Amendment, however, they are talking about a very different text, and the relevant clause is simply lacking. Instead, such people must look for commentary from supporters in the Congressional record or some source of comparable value.

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When they aren’t deliberately misrepresenting Jacob Howard, opponents of birthright citizenship usually reference Sen. Lyman Trumbull of Illinois, who maintains in the Congressional Record that the passage only applies to ‘complete’ citizens of the U.S. and goes on to argue that Navajos, for example are not complete citizens because, being still separate in some sense from the rest of the U.S., they do not vote and maintain their own separate jurisdiction.

(Don’t get your hopes up, racists! This fact has changed.)

Of course one problem with the Navajo example is that it applies to people who actively maintain a separate jurisdiction within the U.S., thus being yet another instance of the degree to which the legal framework for Indian tribes emerges haphazardly within the case history of the Supreme Court. The role that Indian tribal governments play in the legal framework of the United States has never been clear, and that has always complicated the rights of the nation’s indigenous peoples. So, the example is troublesome, to say the least.That said, the example is hardly beside the point. A good portion of the discussion about exemptions to the jurisdiction of the U.S. is driven by the very explicit question of whether or not it would make the entire native population into citizens. Those using comments about that debate are in fact exploiting the vagaries of of Federal Indian law to generalize an exemption from citizenship for non-nationals.

Yes, that’s right. People who want to keep Latinos from becoming American citizens are trying to remind us that the 14th Amendment was only supposed to protect blacks (another group these bigots are not too fond of), and they are resting their argument on efforts to keep Native Americans from voting.

Irony abounds. At last it would, if it weren’t dead already.

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How Trumbuell’s point relates to the children of foreign nationals is another question. But if we take Trumbull’s claims in terms of the most general implications possible, the notion here is that full citizenship includes those who can vote and who re subject to the draft, etc., not those who, while entitled to protections of citizens, remain separate from the general population. Again, he is talking about the members Indian tribes, and again, this sense of the issue would match the text of the Civil Right Act; it does not match the text of the 14th Amendment.

The distinction between full citizenship and something slightly less did not escape these people; it is all over their discussion, and yet they did not write it into the text of the 14th Amendment. So, what do Trumbull’s comments amount to? Likely as not, a degree of confusion on his part, but those who use him to suggest a new reading of the 14th Amendment do more to show us that people don’t always understand the rules they advocate than they do to show us that the rule in question was clearly meant to exclude the children of foreign nationals.

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This is one of the big problems with Constitutional originalism; its advocates continually present us with a case for following the rules as America’s founders (or at least those framing particular laws and constitutional provisions) would have understood them, but the understanding of such people is often as shifty as that of anyone we know today. This is one of the reasons we write things down folks; to fix what we mean in a static form, so that you can’t just keep changing your mind. Constitutional originalism effectively enables modern legal scholars to take that fixity out of the equation and cherry pick the past for the most convenient quotes possible. In this case it substitutes a general sense of how some proponents of the 14th Amendment might have understood it at the time (at least when debating the rights of Indian peoples), for the language of the text itself. When the language contradicts its interpretation by their preferred historical sources, they urge us to go with the sources instead of the text.

In effect, those reading birthright citizenship out of the 14th Amendment seek to see the text of the amendment itself swallowed up in a historical narrative. That this narrative itself is quite debatable is an objection in itself, but as a contextualization strategy for reading the 14th Amendment, it is utter bullshit.

This is a version of context suitable for Halloween, because this kind of context swallows up the very text it is intended to shed light on. No, these people aren’t upholding great constitutional principles, no matter how much they would wish we believed that; they are simply weaponizing obscure historical details, and they are doing so for the clear purpose of hurting some of the most powerless people on U.S. soil, the children of undocumented immigrants.

Of course the central irony here is that those pushing a reading of the 14th Amendment that excludes birthright citizenship are not acting in the spirit of the provision in any sense. Whatever else may be said of the 14th Amendment, it was certainly meant to protect people badly in need of help from the violence of racists intent on oppressing them. Historical obfuscation aside, those pushing this narrative today are seeking to empower racists Hell-bent on scapegoating immigrants from Latin America for our nations many problems. As much as these people may tell stories of standing up to great bastions of power and fighting a liberal establishment, these people really are punching down. They are punching down with a vengeance, and summoning a vision of historical context well suited to that purpose. Their argument fails as a point of principle. As a political agenda, it’s monstrous.

Also, unlike the insistence of Mitch McConnell, Social Security is a retirement plan that you’ve paid into — it is not an “entitlement program.” Same for Medicare, which is a federally-required medical insurance program — in no way an “entitlement” any more than a Blue Cross insurance plan is an “entitlement.”

Excellent analysis, but you left out the clause in the 14th amendment that allows the Cheeto-in-Chief or any lower court to override the birthright portion. It’s similar to the well-known clause (at least here in the South) in the Equal Rights Amendment that requires all restrooms to be unisex. Just ask anyone down here who’s never read it — the answer is nearly unanimous.

Besides, our esteemed leader is sworn to protect the constitution, so when he promises to remove the birthright with an executive order, you seem to imply that he’s either lying or senile. Surely that can’t be true.

Fortunately, Trump has replaced the founder of the Federalist Society with an even more rabid originalist, so we don’t have to worry about an “activist” SCOTUS. As we know, all supreme court rulings need to be interpreted by selected laws and legal interpreters predating the 20th century. Keep everything separate but equal.